Politico

Justice Thomas: SCOTUS ‘should reconsider’ contraception, same-sex marriage rulings


Justice Clarence Thomas argued in a concurring opinion released on Friday that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

The sweeping suggestion from the current court’s longest-serving justice came in a concurring opinion he authored in response to the court’s ruling revoking the constitutional right to abortion, also released on Friday.

In his concurring opinion, Thomas, an appointee of President George H.W. Bush, wrote that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — referring to three cases having to do with Americans’ fundamental privacy, due process and equal protection rights.

Since May, when POLITICO published an initial draft majority opinion of the court’s decision on Friday to strike down Roe v. Wade, Democratic politicians have repeatedly warned that such a ruling would lead to the reversal of other landmark privacy-related cases.

“If the rationale of the decision as released were to be sustained, a whole range of rights are in question. A whole range of rights,” President Joe Biden said of the draft opinion last month. “And the idea [that] we’re letting the states make those decisions, localities make those decisions, would be a fundamental shift in what we’ve done.”

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan echoed those concerns in their dissenting opinion released on Friday, writing that “no one should be confident that this majority is done with its work.”

The constitutional right to abortion “does not stand alone,” the three justices wrote. “To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”

The court’s past rulings in Roe“,”_id”:”00000181-9657-d7eb-adad-f7570b5c0000″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>Roe, Griswold, Lawrence“,”_id”:”00000181-9656-d7eb-adad-f75675d00000″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>Lawrence, Obergefell“,”_id”:”00000181-9656-d618-a99d-f777b5870000″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>Obergefell and other cases “are all part of the same constitutional fabric,” the three justices continued, “protecting autonomous decisionmaking over the most personal of life decisions.”


The court’s majority opinion released Friday, written by Justice Samuel Alito, repeatedly insists that the justices’ decision to abandon Roe poses no threat to other precedents.

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way,” Alito wrote. “Our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

However, the court’s liberals said that assurance wasn’t worth much, given Thomas’ simultaneous invitation Friday to open up numerous other precedents for review.

“The first problem with the majority’s account comes from Justice Thomas’s concurrence — which makes clear he is not with the program,” Breyer, Sotomayor and Kagan wrote. “At least one Justice is planning to use the ticket of today’s decision again and again and again.”

Still, no other justice joined Thomas’ concurrence, which largely reiterated his longstated views on the legal theories behind many of those decisions. It seems doubtful that many of Thomas’ conservative colleagues would be eager to revisit issues like contraception and same-sex marriage anytime soon, given the claims in Alito’s opinion that the court’s ruling Friday casts no doubt on those decisions.

On the other hand, by declining to explicitly repudiate Thomas’ stance, his conservative colleagues gave fodder to the court’s liberal members and left-leaning critics to warn that more overrulings of precedent are on the way.

Of those in the majority Friday, Justice Brett Kavanaugh came closest to rejecting Thomas’ position, albeit without mentioning him by name. In a solo concurrence, Kavanaugh wrote: “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

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